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Tvardek v. Powhatan Village Homeowners Ass'n, Inc.

Supreme Court of Virginia

February 12, 2016

STEVEN F. TVARDEK, JR., ET AL.
v.
POWHATAN VILLAGE HOMEOWNERS ASSOCIATION, INC

          FROM THE CIRCUIT COURT FOR THE CITY OF WILLIAMSBURG AND JAMES CITY COUNTY. Michael E. McGinty, Judge.

         James J. Knicely (Knicely Law Firm, on briefs), for appellants.

         Barry Dorans (Wolcott Rivers Gates, on brief), for appellee.

         Amicus Curiae: Virginia Property Rights Coalition (Stephen J. Clarke; Joshua E. Baker; Waldo & Lyle, on brief), in support of appellants.

         Amicus Curiae: Williamsburg Area Association of Realtors, Inc. (S.M. Franck; Andrew M. Franck; Geddy, Harris, Franck & Hickman, on brief) in support of appellants.

          OPINION

Page 281

          PRESENT: All the Justices

         D. ARTHUR KELSEY, JUSTICE.

         The circuit court in this case granted a special plea in bar dismissing, on statute of limitations grounds, a declaratory judgment action filed by Steven F. Tvardek and Marta P. Tvardek against their homeowners' association. Because the court erred in doing so, we reverse the dismissal order and the circuit court's ancillary award of attorney fees to the defendant.

         I.

         In 2013, the Tvardeks filed a declaratory judgment complaint against their homeowners' association, Powhatan Village Homeowners Association, Inc. (the " HOA" ). They challenged the validity of a 2008 amendment to the Powhatan Village Declaration of Protective Covenants and Restrictions (the " 2008 Amendment" ) on the basis that it unlawfully deprived them of a preexisting right to rent their home, which they purchased in 2006.

         After the Tvardeks filed an amended complaint amplifying their claim, the HOA filed a special plea in bar asserting that the case should be dismissed as untimely under the one-year statute of limitations prescribed by Code § 55-515.1(E). The Tvardeks responded with a motion for partial summary judgment claiming that the statute of limitations was inapplicable because the 2008 Amendment never became " effective" under the Virginia Property Owners' Association Act, Code § 55-509 et seq., and specifically pursuant to Code § 55-515.1(F), which is a prerequisite for the running of the one-year limitations period in Code § 55-515.1(E). Without taking evidence, the circuit court reviewed the pleadings, heard arguments of counsel, and entered an order granting the special plea in bar asserting the statute of limitations defense. The court later entered an order granting " prevailing party" attorney fees, in the amount of $12,237.50, to the HOA. See Code § 55-515(A); J.A. at 219.

Page 282

          The debate over the statute of limitations turned on a single uncontested fact: the text of a certification attached to the 2008 Amendment, which was recorded in the land records of the clerk of the circuit court. The certification stated:

CERTIFICATION REQUIRED BY VIRGINIA CODE § 55-515.1.F
The undersigned President of the Association does hereby certify that this Amendment has been approved by a vote of two-thirds of the Class A votes in the Association, as evidenced by the results of the meeting at which the vote was taken, such evidence on file with the Association, as required by Section 9.2 of the Declaration.
EXECUTED on the date first written above by the duly authorized officer of the Association.
POWHATAN VILLAGE HOMEOWNERS ASSOCIATION, INC.,
a Virginia Nonstock ...

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